Reilly v. Barrett

• Decision Date: 27 February 1917
• Citation: 220 N.Y. 170,115 N.E. 453
• Parties: REILLY v. BARRETT.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 170

115 N.E. 453

REILLY

v.BARRETT.

Court of Appeals of New York.

Feb. 27, 1917.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William F. Reilly against William M. Barrett, as president of the Adams Express Company. A judgment for the plaintiff was unanimously affirmed by the Appellate Division (168 App. Div. 925, 931,152 N. Y. Supp. 1139), and defendant appeals by permission. Affirmed.

See, also, 163 App. Div. 922,148 N. Y. Supp. 1140; 166 App. Div. 904,150 N. Y. Supp. 1108; 166 App. Div. 902,151 N. Y. Supp. 1141.

Herman S. Hertwig, of New York City, for appellant.

Henry M. Dater, of Brooklyn, for respondent.

ANDREWS, J.

This action was brought to recover damages for personal injuries caused by the alleged negligence of the defendant. As an affirmative defense a supplemental answer alleged:

‘That on or about the 16th day of August, 1912, the defendant, in good faith, served his verified answer to the complaint herein denying generally the validity of the plaintiff's claim, and thereafter, and on or about the 10th day of December, 1913, an agreement was made between the plaintiff and the defendant, through their respective attorneys, by which the defendant agreed to pay to the plaintiff in full settlement of the cause of action set forth in the complaint the sum of $200, and the plaintiff, in consideration thereof, agreed to accept the said sum in full settlement of the action, and upon the payment thereof to discontinue the action without costs.’

The answer then alleges tender of the sum of $200 to the plaintiff and his refusal to accept the same, and the continued readiness of the defendant to pay over such sum to the plaintiff.

The sufficiency of this defense was challenged by the demurrer, and the sole question in this court is whether the decision of the Special Term, affirmed by the Appellate Division, sustaining such demurrer, is correct.

[1] An agreement whereby one party undertakes to give or perform, and the other to accept in settlement of an existing or matured claim something other than what he believes himself entitled to, is an accord. The execution of such an agreement is a satisfaction.

An accord, when followed by satisfaction, is a bar to the assertion of the original claim. Until so followed it it has no effect.

[2] The fact that the original claim is based on contract or in tort is immaterial. Either may be barred by accord and satisfaction. So it is whether the claim is liquidated or unliquidated, except that in the former case certain principles as to consideration are enforced which are not applicable to the latter.

These rules apply to every such transaction. It may be called a compromise. But whatever the name given the original claim is not barred until the satisfaction is completed. Kromer v. Heim, 75 N. Y. 574, 31 Am. Rep. 491;Brooklyn Bank v. De Grauw, 23 Wend. 342, 35 Am. Dec. 569.

[3] The satisfaction contemplated by the accord may involve the payment of money or the delivery of property. Or the creditor may agree to accept the debtor's promise itself in satisfaction rather than the performance of this promise. Kromer v. Heim, supra.

In any event the defendant who seeks to set up this defense as a bar to the original action must allege and prove both the accord and the satisfaction. If his claim be...